Error and/or relief
The court erred in denying his expungement request under Penal Code section 1203.4 and in failing to consider his request to reduce the offense to a misdemeanor under Penal Code section 17(b). Because the court did not address his request under section 17(b), on remand it must do so.
First Holding:
An order denying relief under section 1203.4 is appealable.
Authority:
People v. Chavez (2016) 5 Cal.App.5th 110, 114
Second Holding:
Section 1203.4 provides in pertinent part that a defendant who has fulfilled the conditions of probation for the entire period of probation is entitled as a matter of right to have the plea or verdict changed to not guilty, to have the proceedings expunged from the record, and to have the accusations dismissed. If the petitioner meets the criteria for relief under section 1203.4, the trial court is required to grant the requested relief.
Authority:
PEN 1203.4
People v. Hawley (1991) 228 Cal.App.3d 247, 249-250
People v. Guillen (2013) 218 Cal.App.4th 975, 991
People v. Lewis (2006) 146 Cal.App.4th 294, 297-298
Third Holding:
As of 2023, section 1203.4 provides that a petition for relief under this section shall not be denied due to an unfulfilled order of restitution, and an unfulfilled order of restitution shall not be grounds for finding that a defendant did not fulfill the condition of probation for the entire period of probation.
Authority:
PEN 1203.4(c)(3)(A) & (B)
Fourth Holding:
When a crime is punishable as either a felony or a misdemeanor it is commonly referred to as a “wobbler,” and the trial court may reduce the offense to a misdemeanor at the time of granting probation, or on application of the defendant or probation officer thereafter. The court has broad discretion in deciding whether to reduce a wobbler to a misdemeanor. In exercising its discretion, the court considers several factors, including “ ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.
Authority:
PEN 17(b)(3)
People v. Tran (2015) 242 Cal.App.4th 877,
People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968,
People v. Park (2013) 56 Cal.4th 782, 790-791
Fifth Holding:
Grand theft by embezzlement of property valued at more than $950, the offense for which the defendant was convicted, is a wobbler. The trial court should have addressed the defendant’s request to reduce his felony conviction to a misdemeanor.
Authority:
People v. Selivanov (2016) 5 Cal.App.5th 726, 75